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Appendix B: a comparison of the inquisitorial and adversarial systems Ministry of Justice, New Zealand
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Appendix B: a comparison of
the inquisitorial and adversarial systems
Introduction
An inquisitorial system, common in civil law countries, is an alternative model to the adversarial system used in
common law countries including New Zealand. The inquisitorial system is generally described as a system that aims to
get to the truth of the matter through extensive investigation and examination of all evidence. The adversarial system
aims to get to the truth through the open competition between the prosecution and the defence to make the most
compelling argument for their case. Critics of the adversarial approach argue that the pursuit of winning often
overshadows the search for truth.
Neither system is inherently superior. In fact there are many shared features and many countries incorporate features
of both systems, having experienced a degree of convergence over the last 80 years. [73 (#footnotes) ]
An option for New Zealand may be to incorporate aspects of inquisitorial systems within our adversarial system, as
already happens in some courts and tribunals, rather than to adopt an entirely new approach. However, we need to be
careful when adopting individual features on another system, and recognise that individual features fit into a wider
system that may often provide support and balance. Any changes also need to be considered within the context of New
Zealands well-established common law criminal justice system.
The following table outlines the fundamental differences (and areas of convergence) between typical adversarial and
inquisitorial systems:
adversarial systems
Binding
Previous decisions by higher courts are
force of case binding on lower courts.
law
inquisitorial systems
Traditionally, there is little use of judicial precedent
(case law). This means Judges are free to decide each
case independently of previous decisions, by applying
the relevant statutes. There is therefore heavier
reliance on comprehensive statutes/codes of law.
Examining
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Appendix B: a comparison of the inquisitorial and adversarial systems Ministry of Justice, New Zealand
Role of the
trial Judge
and counsel
Use of juries
Rules of
evidence
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Appendix B: a comparison of the inquisitorial and adversarial systems Ministry of Justice, New Zealand
Footnotes
73. Zweigert, K. et al, An Introduction to Comparative Law, Clarendon Press, 3rd edition, 1998, p 271.
74. In New Zealand, defendants have the right to examine the witnesses for the prosecution under section 25(f) of the
New Zealand Bill of Rights Act 1990.
75. Pizzi et al., (1996), above n 76, p 37.
76. Pizzi, William T, and Walter Perron, Crime Victims in German Courtrooms: A Comparative Perspective on
American Problems, Stanford Journal of International Law, Vol 32, 1996, p 37.
77. J R Spencer, Evidence in European Criminal Procedures, Eds Delmas-Marty M and Spencer, J.R., Cambridge
University Press, 2002.
78. This is provided by section 24(e) of the New Zealand Bill of Rights Act 1990. However, there is a proposal in the
Criminal Procedure (Reform and Modernisation) Bill to change this to three years.
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